Tennessee recently banned images that cause "emotional distress."
"Among all the recent efforts to criminalize free speech, Tennessee's Legislature gets the top award for sheer chutzpah. As Ars Technica reports, the state's governor, Bill Haslam, this month signed a bill making it a crime to "transmit or display an image" that is likely to "frighten, intimidate or cause emotional distress" to anyone who sees it. Importantly, Ars notes that "if a court decides you 'should have known' that an image [would] be upsetting to someone who sees it, you could face months in prison and thousands of dollars in fines."
"The ads, in other words, pose a genuine threat to a major Tennessee industry that has lots of eager-to-litigate lawyers and lots of clout with politicians. Now, thanks to Tennessee's criminalization of free speech, that industry can wield a new statutory weapon against the speech it doesn't like. In a tobacco-state court composed of tobacco-state judges and tobacco-state jurors, this industry could realistically hope that such ads would be ruled illegitimate -- and further, that those who disseminate the ads are criminals. By design, that would undoubtedly create both a chilling effect of self-censorship among tobacco distributors (convenience stores, vending machine owners, etc.), and an innovative legal rationale for the industry to ignore the FDA's new warning-label mandate.
Of course, this all remains hypothetical right now. Big Tobacco, in fact, may not even be interested in such a court case, fearing that any extra attention to the FDA ads will only serve to educate more Americans about the negative health effects of smoking. But that's not the point, because if it's not the tobacco industry that attempts to hijack government censorship power then it will certainly be another industry -- as has already happened in other states including Iowa, Florida, Ohio and Minnesota, where agribusiness has recently been trying to statutorily bar revelations about factory farms. In all of these cases, the bottom line remains the same: When the government criminalizes First Amendment expressions, all it is really doing is using state power to preference one set of voices over another."
It's intriguing to me that different interest groups can successfully lobby the courts to limit free speech for such different reasons--conservative traditionalists for the lewdness of the Larry Flynts of the world and the state of Tennessee to protect its own financial interests. Clearly, Tennessee has no interest in protecting its citizens in the way conservatives claim to, since what Tennessee is legislating against is a campaign that leads people to stop doing things that kill them. If one justice system, relying on on the same document (s) and court decisions for guides, will appease such wildly different motives for circumventing the constitution, I think it's time for a new discussion about the uses of the constitution, and whether or not the way justices (and litigators) think of it need to change.
